Published July 24, 2013
We are incessantly lectured by authorities that privacy is dead -- or at least straining for oxygen on a ventilator.
With a disdain that implies we are just naive children, technology companies, corporate leaders, and law enforcement officials regularly scold us that any semblance of personal privacy must kowtow to the digital future, new business models, and crime prevention techniques. To many, the revelations about the NSA's secret surveillance programs only confirmed their suspicion that there is nothing we can do to protect our personal lives from prying eyes.
But a push-back for privacy may be growing, inspiring the hope that individual liberties may not have to submit to the yoke of progress, security and safety.
The U.S. Supreme court ruled last year that law enforcement may not simply track citizens with GPS devices in their cars without first obtaining a warrant from a judge. Now the New Jersey Supreme Court has underscored that decision by determining that police also may not cull customer's location information from wireless carriers without a proper warrant.
The case in question involved a string of burglaries in which the police used cell phone data from T-Mobile to locate the suspect. While the goal of catching criminals is a laudable one, the Court clearly recognized the chilling effect it could have on personal liberties if the police were allowed to tap into individual's smartphones whenever the mood struck them.
“Details about the location of a cell phone can provide an intimate picture of one’s daily life and reveal not just where people go -- which doctors, religious services and stores they visit -- but also the people and groups they choose to affiliate with,” the court wrote in its unanimous decision.
Furthermore, the court found there is in fact an expectation of privacy when people sign up for cell phone service. They should expect that their personal information -- calls, texts, Web surfing, and travels -- remain private. And that expectation matters.
So could these legal decisions pave the way to better privacy protections concerning cell phones and other devices?
Some states are considering enacting laws that would protect citizens from arbitrary digital profiling. Montana, for example, has passed a law that requires police to get a warrant before requesting cell phone data.
On the other hand, there have been renewed efforts to cull even more information from us about our daily lives, including what could soon be a whole new level of surveillance about what drivers do behind the wheel.
By September of next year, the National Highway Traffic Safety Administration hopes that all new vehicles will contain black boxes or event data recorders. EDRs record such information as vehicle speed, acceleration, braking behavior, air bag deployment and seat belt position. In fact, more than 90 percent of cars sold in the U.S. today already have such boxes installed in the center console.
EDRs could give automakers critical safety and performance information, which could reduce injuries in accidents or boost fuel efficiency, and law enforcement can use them to determine blame in an accident and even reduce the number of overall deaths on our highways.
The dark side of black boxes, however, is that there's no clear determination on how this information could be used -- or abused. Should it automatically be available to insurance companies -- who may charge higher rates to drivers who accelerate aggressively or brake suddenly? Should automakers automatically receive the data after an accident or should drivers be able control who gets the information?
In advance of the 2014 deadline, more than a dozen states have moved ahead and passed legislation that acknowledges that the information on the devices belongs to the car owner. This may seem obvious to most people; I also own the front seats, steering wheel and the radio in my vehicle -- because I own the whole car.
However, the same state regulations make it clear that when there's a legal issue, police and insurance companies can requisition that personal information with a court order. That could make the information publicly available in cases in which you were perhaps being sued -- which could lead in turn to nasty divorces or embarrassing revelations in the local newspaper. More worrisome is that most states do not require a court order to obtain such black box information.
To be fair, the boxes that NHTSA supports do not -- yet -- record every single moment of your life behind the wheel. They are designed to store just the critical information before and after an accident. The NHTSA regulations are intended to establish an industry-wide standard for EDRs so that any one could extract the data.
Unlike using a smartphone or portable navigation device, car buyers cannot chose not to have a black box in their vehicle. (There are however video instructions online about how to disable them and other systems such as GM's OnStar.)
The ability to follow drivers in cars is only going to become more complex as Internet-connected vehicles become the norm, adding more personal layers of information to the debate.
One thing is clear: your expectations about privacy do make a legal difference. It's only when we become indifferent that we'll lose those liberties.